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Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel Doc. 68

IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN ADMIRALTY

ODYSSEY MARINE EXPLORATION , INC.

Plaintiff : CIVIL ACTION

: Case No: 8:07- CV- 00616- SDM- MAP

THE UNIDENTIFIED , SHIPWRECKED VESSEL


its apparel , tackle , appurtenances and
cargo located within a five mile radius of the
center point coordinates provided to the Court
under seal

Defendant;
in rem
and

The Kingdom of Spain

Claimant.

PLAINTIFF' S RESPONSE TO COURT ORDER SCHEDULING


PRELIMINARY PRETRIAL CONFERENCE AND
ANSWERS TO STANDARD INTERROGATORIES

COMES NOW the Plaintiff, ODYSSEY MARINE , EXPORA TION , INe.

ODYSSEY" ) by and through its undersigned counsel and files this , it Response to the

Court' s Order Scheduling Preliminary Pretrial Conference And Answers to Standard

Interrogatories , and responds to Plaintiffs Interrogatories as follows:

Dockets.Justia.com
). );

PLAINTIFF' S INTERROGATORY #1

Describe the basis of federal jurisdiction - including all laws, acts havig the force and
effect of law , codes , regulations and legal principles , standards and customs or usages-
which the plaintiff contends are applicable to the instant action.

As a case involving an admiralty and maritime claim , this Court has jurisdiction over

the subject matter pursuant to the Constitution of the United States , Article II , Section 2

Clause 1 28 U. C. g 1333 , and Rule 9(h) of the Federal Rules of Civil Procedure. Claims

arising out of salvage operations are clearly within the admiralty jurisdiction of the federal

courts. See Treasure Salvors, Inc. v. Unidentifed, Wrecked and Abandoned Sailng Vessel

640 F.2d 560 , 566- 67 (5 h Cir. 1981) (Treasure Salvors III). Furthermore , U.S. admiralty

courts unquestionably have jurisdiction to adjudicate salvage claims based on salvage

operations that occur on the high seas. See Treasure Salvors III 640 F.2d at 566- 67 (li The

subject matter jurisdiction thus granted is not limited to causes of action arising from acts or

occurrences on the terrtorial waters of the United States. " Treasure Salvors I 569 F.2d at

334 ("the presence of the res within the district is not an absolute prerequisite to the court'

jurisdiction. It is common for U. S. admiralty courts to assert in rem jurisdiction over

shipwrecks located in international waters and even within the terrtorial seas of foreign

nations. See Marex v. Unidentifed, Wrecked and Abandoned Vessel 952 F. Supp. 825 , 828

(S. D. Ga. 1997); S. Titanic, Inc. v. The Wrecked and Abandoned Vessel 924 F. Supp.

714 (B.D. Va. 1996); Bemis v. MS. Lusitania 884 F. Supp. 1042 (E. Va. 1995), aff' , 99
h Cir. 1996),
3d 1129 (4 cert. denied 118 S. Ct. 1558 (1998).

The crux of this specific case is an adjudication of property rights to an unidentified

shipwreck and/or cargo located outside the terrtorial seas and contiguous zone of any
sovereign state. Additionally, prior to this Court obtaining constructive in rem jurisdiction

over the Defendant site , neither the site , nor any vessel , nor cargo thereof was in the actual

possession of Spain , nor any other person , entity or sovereign State. Although Spain seems

to allege an ownership interest in Defendant Site , not only has this not been established , but

Spain has provided no basis for a claim against a vessel which Odyssey believes to be an

Italian-registered passenger ship which sank in 1915. Despite the lack of any evidence for a

claim , the Amended Verified Complaint would operate directly against the vessel and cargo

and would involve a determination of the potential ownership interest (or lack thereof) of all

parties in the property within the jurisdiction of this Court.

It is well settled that a Court sitting in admiralty has jurisdiction to determine

ownership interests of salvaged property that has been reduced to the possession and control

of the salvor and is before the Court. MS. Titanic, Inc. v. Haver 171 F. 3d 943 961 (4th

Cir. 1999); Treasure Salvors , Inc. v. Unidentifed Wrecked and Abandoned Sailng Vessel,

640 F.2d 560 566 (5th Cir. 1981). The so-called " constructive in rem jurisdiction permits a

United States Court sitting in admiralty to adjudicate rights over the entire wreck or cargo.

S. Titanic , Inc. 171 F. 3d at 961. The basis for this power is within the jus gentium of

the law of nations to which Spain , and all other persons or entities , are similarly bound. Id.

One of the justifications for constructive in rem jurisdiction over shipwrecks or cargo beyond

the terrtorial waters or contiguous zone of any nation is to protect such property from being

plundered , to preserve the historic interest , protect the rights of the first salvor , and to return

the goods to economic usefulness. Thomas J. Schoenbaum, Admiralty and Maritime Law

179 (4th ed. 2004).


Furthermore , this Court has , or wil have during the pendency of this action

jurisdiction over any potential claimant including Claimant , Spain , and/or competing salvors

by virte of its contacts to this forum; the nature of the Plaintiffs admiralty action; the

relationship of the potential claimant and/or salvor to the Plaintiff, the submission of a claim

(such as that of Spain) by any potential claimant in this forum; and/or under the principles of

jurisdiction by necessity. This Cour' s exercise of jurisdiction over Spain and other

competing claimants and/or salvors is necessary to prevent irreparable injury to , or

destruction of the Defendant Site; to allow the Plaintiff to continue to pursue its ongoing

survey and archaeological recovery operations without interference; to bring the recovered

arifacts within this District; to engage in conservation of the arifacts; and to prevent
destrction of this Court' s actual and potential jurisdiction.

This court has personal jurisdiction specifically over Spain, despite Spain

suggestion to the contrary, based upon the fact that Spain has fied a general appearance

through its Verified Claim pursuant to Supplemental Rule C(6) (Dkt. 17). The Verified

Claim operates as a general appearance unless it has been expressly restricted to the defense

of the in rem claim pursuant to Supplemental Rule E(8). Us. v. Republic Marine, Inc. , 829

2d 1399 , 1402- 1403 (7th Cir. 1987). Nowhere in Spain s Verified Claim did it expressly

restrict its appearance to the defense of the in rem claims.

It should be noted that out of an abundance of caution , Odyssey is taking steps to

serve Spain pursuant to the Foreign Sovereign Immunities Act. This Court has issued a

Summons to the Kingdom of Spain (Dkt. 47) and , in fact , such service may be effectuated at

the time of the Preliminar Pretrial Conference.


In Count V , the Amended Verified Complaint sets forth claims for unjust enrchment

and quantum meruit which are equitable theories of recovery often pled in the alternative in

salvage actions based on the value of the services provided to a vessel or cargo owner. See

The Elfrida 172 U. S. 186 194 (1898). The ultimate disposition of Count V depends

upon a determination of the ownership of the res; this Court , nevertheless , has jurisdiction to

entertain Count V , even against a sovereign state such as Spain. The equitable relief sought

in Count V is clearly related to an in rem claim for salvage. It alternatively seeks

compensation for services rendered to the Defendant res in the event a martime lien is

deemed not to exist. As such , the equitable relief is sought on the theory of benefit to the

owner of the Defendant res. In the event Spain is ultimately determined to have ownership

rights in the Defendant res , this Court would have subject matter jurisdiction under the

Foreign Sovereign Imunities Act , 28 U.S. C g 1607. Section 1607 provides that , when a

foreign State intervenes in an action , the foreign State wil not be immune with respect to any

counterclaim " arising out of the transaction or occurrence that is the subject matter of the

claim of the foreign state. Id. Clearly, Spain has made a Claim of Owner in the Defendant

res currently under the jurisdiction of this Court. In the event the property is determined to

be that of Spain or any other claimant , and not abandoned , Count V of the Complaint seeks

compensation that is clearly related to services provided to the vessel and/or cargo and its

owner for the salvage of the property, which arose out of the same subject matter of the claim

of the foreign State. Accordingly, Count V falls squarely within an express waiver of
Spain s sovereign immunity found within the Foreign Sovereign Immunity Act.
In Count VI of the Amended Verified Complaint , Odyssey alleges that it suffered

damages as a result of Spain s tortious conduct in invading its possessory rights to the

Defendant res and in interfering in its performance of its duties as substitute custodian.

These acts fall squarely within exceptions to the waiver of sovereign immunity found within

the Foreign Sovereign Immunities Act. Mainly, Spain is not immune from the jurisdiction of

a court in the United States concerning a suit in admiralty to enforce a martime lien against a

vessel or cargo. See 28 U. C. g 1605(b).

Spain s actions clearly arise out of Odyssey s arrest of the Defendant res in this case

- Spain has interfered with Odyssey s court-ordered duties as substitute custodian and with

its ability to continue to perform its archaeological recovery and salvage operations as

permitted by this Court. Since Spain s actions are all related to , and are in retaliation for

Odyssey s arrest of the Defendant Site and cargo properly before this Court , Spain has

waived sovereign immunity and is subject to liability for the acts complained of.

In addition to g 1605(b), Spain has also waived any sovereign immunity under

1607(b). Section 1607(b) waives sovereign immunity with respect to any counterclaim

arising out of the same transaction or occurrence as the subject matter of a claim in which a

foreign State intervenes. 28 U. C. g 1607(b). Here , Spain intervened in the arrest of the

Defendant res by filing a Verified Claim. As detailed in the Amended Verified Complaint

Spain has taken numerous actions interfering with Odyssey s possessory rights and duties as

substitute custodian which all relate directly to the salvage of the Defendant Site in this

matter. Under 28 U. C. g 1607 , Spain has therefore waived its sovereign immunity with
respect to a counterclaim for damages as a result of Spain s intervention and tortious and

ilegal conduct arsing out of the arrest of the Defendant res.

PLAINTIFF' S INTERROGATORY #2

Describe in detail the injuries or damages incurred by plaintiff and the specific acts or
omissions by the defendant which have allegedly caused the injuries or damages.

Odyssey s recovery of artifacts from this and other sites has been the subject of

intense international media attention especially in Spain. As a result solely of false media

reports , and false allegations by officials in Spain regarding the discovery Odyssey has called

the Black Swan , and despite Odyssey s continued assurance that no artifacts have been

recovered in Spanish terrtorial waters , a bogus and prejudicial criminal investigation was

launched in Spain against Odyssey under a " secret order. " In fact , Odyssey became aware

through the Spanish press that Spanish authorities would intercept and inspect Odyssey

vessels , the Ocean Alert and the Odyssey Explorer if they attempted to depart Gibraltar

where they were docked. Spain rejected and rebuffed Odyssey s attempts to appear in its

own defense. Thus , as described in the Amended Verified Complaint , Odyssey prepared a

Sworn Statement explaining Odyssey s actions and the facts surrounding the arrest , the

recovery, and the subsequent claims and baseless detention of Odyssey s ships by Spain.

Despite the fact that Odyssey provided the Sworn Statement and further information

regarding its recovery to Spanish officials , and despite the assurance of a Spanish criminal

judge that Odyssey s vessels would not be boarded without the consent of the Master or

forcibly taken to a Spanish port , on July 12 , 2007 , while Odyssey was moving its vessel the

Ocean Alert from Gibraltar , and while the vessel was in international waters , Spain boarded
the vessel under protest from the Master and ilegally seized the vessel forcing it into the

Spanish port of Algeciras. Having alerted the Spanish media to the boarding and seizure

Spanish authorities paraded the Ocean Alert along the coastline for photographic and video

opportnities. Additionally, despite her protests , officials seized the personal computer of
one of Odyssey s attorneys and informed her that they intended to copy all information from

the computer , which she made clear included attorney/client privileged information regarding

Odyssey and other clients.

Once in Algeciras , Odyssey s crew and attorneys were forced by the Spanish officials

to sit in the scalding sun for approximately seven hours without food or water or use of the

restroom. Their passports were taken , as were all of their electronic equipment (of which the

hard drives have been removed and only the empty laptops returned). Spanish offcials found

no evidence of any wrongdoing on Odyssey s par , and eventually released the Alert on June

2007.

On October 16 , 2007 , the Odyssey Explorer attempted to depart the port in Gibraltar

and was similarly intercepted , and under threat of force was diverted to the Spanish port of

Algeciras , Spain , against the wil of the Master. Spanish officials even violated their own

secret order" which Odyssey has since learned allowed boarding only upon consent of the

Master or , if withheld , upon consent of the flag state. The Master was also arrested and

detained , and although released , he remains under court order to appear in Algeciras each

month , apparently in perpetuity. Although Spanish officials again found absolutely no

evidence of any wrongdoing by Odyssey, and although the Explorer was released on October

, 2007 , Odyssey s equipment including the ROV (Remotely Operated Vehicle) used in
Odyssey s search and recovery projects was sealed, and despite the lack of any written order

Odyssey has been instructed not to remove the tape which binds the ROV under threat of

arrest , and , in effect , attaches it to the Explorer thus denying Odyssey access to its own

equipment for use in exercising the very rights granted to it by this Court to continue

operations at the Defendant site.

In addition to the forgoing, Spain has intimidated and interfered with some of

Odyssey s researchers in Spain , making them fearful to provide services to Odyssey and

limiting their ability to work on projects for Odyssey.

Odyssey s damages as a result of Spain s tortious conduct are extensive. At the date

of this filing, Odyssey estimates its damages caused by Spain s active interference with

Odyssey s civil liberties , business operations and possessor rights to be over Five Milion

Dollars ($5 000 000. 00). Those damages have been carefully documented and may be

broken down generally as follows:

Interrption of Service of Vessels and Lost OPvortunity 560 000

Marine Equipment $ 164 000


(Equipment Odyssey was unable to retreve due to
Spain s ilegal blockade , and damages caused by
Spanish officials to vessel equipment upon capture)

Freight 000
(Costs to move equipment)

Contractual Losses 170 000


(Forfeited production work and
expenses incurred from cancellation)

Travel and Legal Expenses 000


Loss of Use of Research Services 121 000
(Researchers)

Artifact Detention (Uncalculated)


(Artifacts detained in Gibraltar due
to Spanish Order - likely suffering
deterioration)

Odyssey wil also present " damage " evidence in this case regarding the costs

associated with the recovery and the proper archaeological conservation of the Defendant

Site and artifacts therefrom. Such evidence wil be related to Odyssey s custodial obligations

and salvage claim.

PLAINTIFF' S INTERROGATORY #3

State the full name, address and telephone number of all persons or legal entities who
have a financial interest in this action , and state the basis and extent of the interest.

Odyssey Marine Exploration Inc. is a publicly traded company on the NASDAQ

exchange with approximately 6 000 shareholders , each of whom wil have a financial interest

in this action as the stock value of the company may depend upon the outcome of the

litigation. Also affected wil be employees , suppliers , and contractors. Additionally, when

and if the identity of a particular ship associated with the Defendant Site is confirmed , there

may be parties who will have a cultural and/or legal interest in the wreck. As ODYSSEY has

noted in its pleadings , notice to such parties wil be provided.


PLAINTIFF' S INTERROGATORY #4

Describe the nature of any dispositive motion(s) which the plaintiff anticipates may be
fIed in this action.

ODYSSEY anticipates that it wil file Motions for Summar Judgments based upon

legal issues involved in the action including but not limited to the issues raised by Claimant

Spain , of alleged sovereign immunity and assertion of a unilateral and general refusal of

salvage. ODYSSEY also anticipates that following completion of discovery, it wil fie a

Motion for Summary Judgment granting ODYSSEY title to the Defendant Site and/or an

appropriate salvage award for its recovery efforts.


'"

ODYSSE RATION ' INC.

By:

COf"Pt&km
(prit Name)
Co -
CfYLl rnXi
(Title)

STATE OF FLORIA

COUNTY OF
1+;
1/51uf
OVUJl

VERIICATION

if.
Lb
to me or who produced
ME, the undersigned authority, appeared

Jrrr't of Odyssey Mare Exploration, Inc.


swears and deposes tht be/she has read the foregoing Anwers to Stadard
so1Wll y known
eDmcation, who

Interrogatories and that the same are tre and correct to the best ofbis/her knowledge and
0 is

as

belief.

SWORN TO AN SUBSCRIED before me ths 12th day of November, 2007.

Nota Public
My commssion expires:

ff""YPl' PENNY CUBBEDGE GREENE


!! MY COMMISSION # DD 37831
1'on\\) EXPIRES: December 9 , 200B
H\ooNOTARY F Nolar Dlucounll\oe CD.
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 13 , 2007 , I electronically filed the foregoing


with the Clerk of the Court by using the CM/ECF system which wil send a notice of
electronic filing to James A. Goold , Covington & Burling LLP , 1201 Pennsylvania Ave.
, Washington , DC 20004; and David C. Banker, Bush Ross P. , 220 S. Franklin Street
P. O. Box 3913 , Tampa , FL 33601 A ttorneys for Claimant, Kingdom of Spain.

s/ Allen von Spiegelfeld


Allen von Spiegelfeld - FBN 256803
avonsp(cfowlerwhi te. com
Eric C. Thiel- FBN 016267
ethi el (cfow lerwhite. com
FOWLER WHITE BOGGS BANKER P.
O. Box 1438
Tampa , Florida 33601
(813) 228- 7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff